R v Mizner - [2019] QCA 198

SUPREME COURT OF QUEENSLAND

CITATION:

R v Mizner [2019] QCA 198

PARTIES:

R
v
MIZNER, Jason Daron
(applicant)

FILE NO/S:

CA No 309 of 2018
DC No 914 of 2018

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane – Date of Sentence: 26 October 2018 (Clare SC DCJ)

DELIVERED ON:

27 September 2019

DELIVERED AT:

Brisbane

HEARING DATE:

24 July 2019

JUDGES:

Morrison and Philippides JJA and Applegarth J

ORDER:

Application for leave to appeal is refused.

CATCHWORDS:

CRIMINAL LAW – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – SEXUAL OFFENCES – MAINTAINING SEXUAL RELATIONSHIP WITH CHILD AND PERSISTENT SEXUAL ABUSE OF CHILD – where the applicant raped and sexually abused the two year old daughter of a woman he was in a relationship with – where the applicant’s conduct was only detected after the applicant had left to travel in Thailand – where the partner discovered amongst the applicant’s belongings: child exploitation material, lists of websites and handwritten notes detailing the applicant’s plans and thoughts for the targeting and kidnapping of children for the purposes of sexual exploitation – where the partner forwarded the material onto the police – where police seized computer hardware which contained child exploitation material and a camcorder and two camcorder tapes – where footage on the camcorder tapes depicted the applicant raping and sexually assaulting the partner’s two year old daughter – where the applicant was imprisoned in Thailand for child sex offences – where the applicant filmed himself raping and sexually assaulting a two year old girl in Thailand – where the applicant was sentenced to 35 years imprisonment in Thailand but was released after serving 10 years and 11 months after receiving various commutations and finally a Royal Pardon – where the applicant was deported from Thailand and arrested upon return to Australia for the offences relating to the current sentence – where the applicant was sentenced to 19 years imprisonment for maintaining an unlawful relationship – where the applicant appeals his sentence on the ground of manifest excess – where the applicant will have spent more than 26 years in continuous custody before becoming eligible for parole – whether the sentence imposed upon the applicant was manifestly excessive

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant spent around 11 years in custody in Thailand comprising of both a prison sentence and immigration detention – where the applicant was sentenced to 19 years imprisonment for maintaining an unlawful relationship – where the applicant appeals on the ground that the sentence imposed was manifestly excessive – where it is contended that there was a misapplication of the totality principle as the applicant will have effectively served a 30 year sentence when combining the current sentence with the 11 years served in Thailand – where it is contended that the sentence imposed upon the applicant has effectively delayed the applicant’s parole eligibility…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Mizner

Details

AGLC: R v Mizner [2019] QCA 198
Case: [2019] QCA 198
Decision Date: 27 September 2019

CaseChat Overview and Summary

The case of R v Mizner involved the applicant who was convicted of maintaining a sexual relationship with a child and persistent sexual abuse of a child. The crimes were committed against the two-year-old daughter of a woman he was in a relationship with. The applicant’s conduct was only detected after he left to travel in Thailand, where he was subsequently imprisoned for similar offences. Upon his return to Australia, the applicant was arrested and sentenced to 19 years imprisonment. The applicant appealed the sentence on the basis that it was manifestly excessive.

The legal issue the court had to determine was whether the sentence imposed upon the applicant was manifestly excessive. The court needed to consider whether the time spent in custody in Thailand should have been taken into account when sentencing for the current sentence, and if the sentence was manifestly excessive when combining the current sentence with the time served in Thailand. The court also had to consider whether the sentence imposed by the sentencing judge was manifestly excessive, taking into account the totality principle.

The court found that the sentencing judge had taken into account the totality principle and other relevant factors in arriving at the sentence. The court found that the sentencing judge had considered the horrific nature of the applicant’s crimes, his antecedents, his guilty plea, and the community’s need for protection against his reoffending. The court also found that the sentencing judge had considered the fact that the applicant had spent 11 years in prison in Thailand for similar offences. The court found that the most appropriate sentence was not to be divined by comparing a life sentence with a certain end date, but by taking into account all the circumstances of the case. The court concluded that it could not be demonstrated that a life sentence was beyond the available discretion, nor could it be said that the ultimate sentence of 19 years was manifestly excessive.

The court refused the application for leave to appeal.

Orders

Orders of the court

Application for leave to appeal is refused.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

TK involved a 21 month old victim, and one count of torture and two counts of rape. The torture consisted of cigarette burns to her arm. The rapes were vaginal and anal. There were internal injuries to the vagina and anus. The offender was a heavy drug user at the time. He was also a schizophrenic. The Court considered TK to be comparable to R v C. The 16 year sentence was not interfered with. The Court referred to other decisions, R v Luke[118] and R v Eather,[119] in which 16 and 18 year sentences had been given for rape of young victims.[118][1987] CCA 9.[119](1994) 71 A Crim R 305.Conclusion For the reasons above it cannot be demonstrated that a life sentence was beyond the available discretion, nor can it be said that the ultimate sentence of 19 years was manifestly excessive. I would refuse the application for leave to appeal. PHILIPPIDES JA: I agree with Morrison JA. APPLEGARTH J: I have had the considerable advantage of reading the comprehensive reasons of Morrison JA, with which I agree. I would add the following. Before the learned sentencing judge the applicant sought a determinate sentence, rather than one of life imprisonment. The consequence was that a head sentence of 10 years or more would automatically attract a requirement to serve 80 per cent of that sentence before being eligible for parole. Before this Court, the applicant notes that the practical effect of the sentence he received means that he will be in continuous custody for a period exceeding 26 years before becoming eligible for parole, and, if not granted parole, he will have to serve a total period of 30 years’ imprisonment. These points were well-appreciated by the learned sentencing judge. The applicant accepts that the sentencing judge took account of the “totality principle”, but submits, in effect, that her Honour did not give enough weight to it. There is no suggestion that the learned sentencing judge did not have regard to what the applicant’s parole eligibility date would have been had a life sentence been imposed. Her Honour did so. However, that was simply one consideration in arriving at a head sentence, and consequential parole eligibility date, which was just in all the circumstances. The most appropriate sentence was not to be divined by comparing:(a)a life sentence which carried the potential to serve one’s whole life in custody, but carried a parole eligibility date after 15 years; and(b)a sentence with a certain end date, which carried a parole eligibility date fixed by statute.That comparison had some utility, and was undertaken by the sentencing judge. However, the ultimate and demanding task was to arrive at the most appropriate sentence. Such a sentence needed to take account of the horrific nature of the applicant’s crimes, committed over a period of months, against a vulnerable two year old, his further crimes of a similar nature in Thailand, his antecedents, his guilty plea and the community’s need for protection against his reoffending. In addition, the learned sentencing judge had to take account of the fact that:(a)any sentence of more than 10 years would require the applicant to serve 80 per cent of it before being eligible for parole; and(b)the applicant had spent 11 years in prison in Thailand for similar offences.The learned sentencing judge did all of those things.

Ratio Decidendi

Legal Principle Established

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CITATION:	R v Mizner [2019] QCA 198
PARTIES:	R v MIZNER, Jason Daron (applicant)
FILE NO/S:	CA No 309 of 2018 DC No 914 of 2018
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane – Date of Sentence: 26 October 2018 (Clare SC DCJ)
DELIVERED ON:	27 September 2019
DELIVERED AT:	Brisbane
HEARING DATE:	24 July 2019
JUDGES:	Morrison and Philippides JJA and Applegarth J
ORDER:	Application for leave to appeal is refused.
CATCHWORDS:	CRIMINAL LAW – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – SEXUAL OFFENCES – MAINTAINING SEXUAL RELATIONSHIP WITH CHILD AND PERSISTENT SEXUAL ABUSE OF CHILD – where the applicant raped and sexually abused the two year old daughter of a woman he was in a relationship with – where the applicant’s conduct was only detected after the applicant had left to travel in Thailand – where the partner discovered amongst the applicant’s belongings: child exploitation material, lists of websites and handwritten notes detailing the applicant’s plans and thoughts for the targeting and kidnapping of children for the purposes of sexual exploitation – where the partner forwarded the material onto the police – where police seized computer hardware which contained child exploitation material and a camcorder and two camcorder tapes – where footage on the camcorder tapes depicted the applicant raping and sexually assaulting the partner’s two year old daughter – where the applicant was imprisoned in Thailand for child sex offences – where the applicant filmed himself raping and sexually assaulting a two year old girl in Thailand – where the applicant was sentenced to 35 years imprisonment in Thailand but was released after serving 10 years and 11 months after receiving various commutations and finally a Royal Pardon – where the applicant was deported from Thailand and arrested upon return to Australia for the offences relating to the current sentence – where the applicant was sentenced to 19 years imprisonment for maintaining an unlawful relationship – where the applicant appeals his sentence on the ground of manifest excess – where the applicant will have spent more than 26 years in continuous custody before becoming eligible for parole – whether the sentence imposed upon the applicant was manifestly excessive CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant spent around 11 years in custody in Thailand comprising of both a prison sentence and immigration detention – where the applicant was sentenced to 19 years imprisonment for maintaining an unlawful relationship – where the applicant appeals on the ground that the sentence imposed was manifestly excessive – where it is contended that there was a misapplication of the totality principle as the applicant will have effectively served a 30 year sentence when combining the current sentence with the 11 years served in Thailand – where it is contended that the sentence imposed upon the applicant has effectively delayed the applicant’s parole eligibility…